Janyce C. Katz: Judicial appointees will affect our lives, liberties

Friday

Dec 1, 2017 at 12:01 AMDec 1, 2017 at 6:36 AM

President Trump could appoint more individuals to federal courts than any other president during the last four decades.

The Republican Party guaranteed a large number of open positions by preventing federal judicial appointments, including the appointment of Merrick Garland to the U.S. Supreme Court, during the Obama years. Soon, a few current judges will move to senior-judge status, and Congress could increase the number of judges.

Judges can shape the meaning and the manner in which laws and the U.S. Constitution (or state constitutions) are applied. The appointment of an individual to the lifetime position of federal judge means the judge interprets laws for a long time.

When determining if a law really applies to facts, some judges, referred to as textualists, use only the clear meaning of the words. If interpreting a clause of the U.S. Constitution, they follow what they believe the Founding Fathers intended at the time it was drafted, referred to as original intent.

Other judges go beyond the words, especially if a law’s wording is vague. They might look at what the Congress was trying to do when it passed the law — to determine legislative intent. Or they might look at other factors or balance issues and the law or use common law, because they believe the interpretation of the meaning of Constitution's clauses and U.S. laws should evolve as society changes.

Many federal court decisions since the 1930s affirming federally passed laws like minimum wages have been based upon a broad interpretation of the wording of the Constitution and/or the law, plus legislative intent, weighing divergent interests, etc.

For example, the U.S. Supreme Court justified its 1954 Brown v. Board of Education decision ending schools that were separate and allegedly equal for nonwhite individuals by saying such segregation harmed children, and by citing work of current social scientists.

Had the Supreme Court decided the case based upon the original intent of the Constitution, there would have been no such reliance on contemporary social scientists. Instead, the slavery legalized in the U.S. Constitution, as well as the lack of wording supporting integrated education in the Civil War Amendments that freed slaves and made it possible for them to vote, would have been support for maintaining segregated schools.

In 1905, in Lochner vs. New York, the U.S. Supreme Court found a New York State law limiting bakers’ hours to 10 a day, six days a week unconstitutional because it interfered with each baker’s right to negotiate under the Contract Clause of the US Constitution. In 1937, the majority’s broader interpretation of the Constitution in a different case allowed a state-passed minimum-wage law to stand, effectively overturning Lochner.

The broader interpretations of law and the Constitution opened the door to other decisions, like a right to privacy, or a right to marry whomever. Discrimination in housing and hotels became unconstitutional based upon broad interpretations, balancing tests and the like.

Most Trump appointees are individuals who believe in using original intent and clear meaning of the words. Some appointees might lack necessary experience or judicial temperament needed to be a judge. For example, Brett Talley, nominated by Trump for a federal judgeship in Alabama, is three years out of law school and has never tried a case.

Appointing individuals with a specific philosophy is now easier, because of a 2013 Senate rules change holding that only 51 senators, instead of 60, are required to confirm a judicial appointment. Plus, the Senate ended a courtesy deference to the senators from the home state of an appointee, so that an appointment can move through the system without that state’s senator being able to block it.

The Trump courts, citing originalism or precise meaning of words as authoritative, could swing the interpretation of constitutional provisions and laws to totally change the way cases have been decided in recent years, and young judges could uphold those decisions for generations.

Given the importance of courts and their decisions, it is imperative that we monitor appointments to protect the quality of our judicial decisions. Decisions affect our lives and liberties.

Janyce C. Katz is local attorney and chair of the Franklin County Consortium for Good Government.

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